The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits after February 2, 2018. A hearing was held on October 23, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after February 2, 2018.

Decision

The worker is not entitled to wage loss and medical aid benefits after February 2, 2018.

Background

The worker reported to the WCB on August 2, 2017 that he injured his lower back at work on July 27, 2017. He reported the injury to his employer on August 2, 2017 and described the incident as "I was refilling water truck. I was on top positioned above the fill hole holding a water line feeder hose. When I started the water the pressure made me lose balance and I twisted my body and fell a couple rungs off of the ladder."

The worker was seen by his family physician on August 2, 2017 who recommended he remain off work until he was reassessed again on August 8, 2017. An initial physiotherapy assessment was done on August 3, 2017. The worker reported to the physiotherapist that he slipped off a ladder and had complaints of trouble getting up or down from a chair, pain when rolling in bed, worse pain when coughing or sneezing, left groin pain and initial pain on his left hand side. The physiotherapist diagnosed the worker with a low back/right hip sprain/strain and also recommended he remain off work until reassessed by his treating physician on August 8, 2017.

In a discussion with the WCB on August 3, 2017, the worker confirmed the mechanism of injury as reported to the WCB and advised that "…his back is still very sore, he has trouble bending over."

At his follow-up appointment on August 8, 2017, the worker's family physician noted the worker's complaints that his lower back pain was worse, with the worker reporting problems with standing, bending and putting on clothes. The physician's findings included very restricted flexion and extension of the worker's range of motion and recommended a further week off work. The worker contacted the WCB on August 10, 2017 to report an increase in his symptoms and advised that he sought medical attention. His treating family physician noted from an examination of the worker on August 10, 2017, an exacerbation of the worker's lower back symptoms and sacroiliac joint spasms after the worker reported bending over to pick up an item that morning. It was recommended the worker remain off work. An x-ray of the worker's lumbosacral spine taken on August 10, 2017 indicated "…minimal intervertebral disc space narrowing at the L5-S1 level"; "…minimal facet joint arthropathy involving the L5-S1 facet joints"; and "Anterior degenerative osteophytes arise off the inferior endplate L2, superior and inferior endplate L3 and superior endplate L4."

On August 16, 2017, the worker attended for a follow-up appointment with his family physician. The worker reported a decrease in back pain from his previous appointment but still reported issues with bending, walking and with stairs. The physician noted that the worker could possibly return to work in three to four weeks' time.

The worker's file was reviewed by a WCB medical advisor on August 25, 2017. The WCB medical advisor opined that the medical findings on file were "…most consistent with non-specific low back pain (ie inferring that there is no specific structural abnormality to account for the pain); however, the initial report of pain to the leg and the difficulty with flexion is concerning for a radiculopathy." The WCB medical advisor further provided that "Most episodes of back pain resolve fully within 4-6 weeks; if there is a radicular component, it can take several months." It was noted that the worker's treating healthcare providers had not cleared the worker to return to work; which was considered reasonable as the worker's job duties included activities that were likely to aggravate the compensable injury. The WCB medical advisor noted that if light duties were available, sitting/standing as tolerated, no heavy lifting, no repetitive bending/twisting and no work in awkward positions would be the recommended restrictions.

On September 5, 2017, the worker attended for a further physiotherapy assessment. The physiotherapist noted the worker's complaints of back tightness, discomfort in his mid lower back, occasional tingling in his right anterior thigh, improved mobility and less pain. The physiotherapist reported full trunk extension, full rotation, that the worker could lift/carry 10 pounds, push 40 pounds and pull 30 pounds and noted the worker's current functional capabilities of lifting 10 pounds from waist height, pushing 40 pounds and pulling 30 pounds.

On September 14, 2017, the worker's treating physiotherapist contacted the WCB case manager to discuss the worker's treatment. The physiotherapist advised the WCB of his concerns that the worker's symptoms continued to change during treatment. Initially, the worker reported pain to his back and right leg, which shifted to his left leg and the physiotherapist felt the worker's current symptoms were not consistent with the reported mechanism of injury and further, that the worker should be ready to return to work at this point but is pain focused. A call-in examination with a WCB medical advisor was recommended.

A call-in examination was arranged with a WCB medical advisor for the worker on September 26, 2017. The WCB medical advisor opined that the diagnosis related to the July 27, 2017 workplace accident was non-specific back pain and the worker's current diagnosis was of the same. The WCB medical advisor provided further that as most diagnoses of low back pain recover "…over a period of about three months", the worker's current diagnosis was medically accounted for in relation to the workplace accident. Restrictions of not lifting greater than 10 pounds, able to work in a position of comfort and change positions between sitting and standing as tolerated, not work in awkward postures and no repetitive bending or twisting at the spine, particularly against weight were recommended. A CT scan was conducted on the worker's lumbar spine on October 3, 2017 and an addendum was added to the September 26, 2017 call-in examination by the WCB medical advisor indicating that the scan showed "…multilevel disc changes, but no significant nerve root involvement"; which was opined to be "…most commonly seen with degeneration." As such, the results did not change the WCB medical advisor's opinion that the worker's diagnosis was of non-specific back pain.

On September 28, 2017, the employer was advised of the worker's restrictions and on September 29, 2017, the employer confirmed there were modified duties available for the worker. On October 13, 2017, the WCB advised the worker that as he was capable of returning to full modified duties as of October 10, 2017, he was not entitled to further wage loss benefits beyond that date.

The worker attended for an initial chiropractic assessment on October 26, 2017. The chiropractor diagnosed the worker with L3/4, L4/5, L2/3 disc bulging with inflammatory process, left sacroiliac joint dysfunction and paraspinal muscle spasms.

The employer advised the WCB on November 7, 2017 that the worker would be laid off in the near future, which occurred on November 17, 2017, when the worker was placed back on full wage loss benefits.

On January 7, 2018, the worker's file was reviewed again by a WCB medical advisor. The WCB medical advisor noted that it was 5 ½ months after the worker's injury, beyond the normal recovery period for the diagnoses provided by his treating healthcare providers with no apparent reason for the delay in recovery. The worker's treating chiropractor recommended strengthening however, the WCB medical advisor provided that strengthening could be achieved by a gradual return to work. Further, the WCB medical advisor agreed with the recommendation by the worker's chiropractor that as the worker had been off work for a period of time, a gradual return to work should be introduced. On January 8, 2018, the WCB discussed a gradual return to work schedule of four hours per day for one week, increasing to six hours per day the following week and increasing to eight hours per day the following week, with the worker being able to return to full duties by February 2, 2018. The worker was advised by the WCB on January 8, 2018 that his entitlement to wage loss and medical aid benefits would end February 1, 2018.

The worker provided further submissions regarding an incident on November 7, 2017 where he believed he suffered a recurrence of his workplace injury and the modified duties he was performing for the employer. On February 16, 2018, the WCB advised the worker the new information was reviewed but there would be no change to the earlier decision.

On October 2, 2018, the worker's representative provided the WCB with additional medical information including reports from the worker's treating family physician, a physiatrist and a second physiotherapist. The new medical information was reviewed by a WCB medical advisor on October 30, 2018. The WCB medical advisor opined that the information did not change the previous medical opinions on the worker's file that he sustained a non-specific back injury at work on July 27, 2017 that normally would resolve within three months but was provided with treatment and claim coverage for six months. It was noted that degenerative changes were found on a CT scan of the worker's lumbar spine however, the changes were found not to be severe enough to significantly prolong the worker's recovery. Further, it was noted that "The worker still hasn't had resolution of his symptoms, over a year post-injury, further supporting that they aren't related to an acute musculoskeletal injury from July 2017." The worker was advised on October 31, 2018 that the earlier decisions that he was not entitled to wage loss and medical aid benefits remained unchanged.

The worker's representative requested reconsideration of the WCB's decision to Review Office on November 6, 2018, noting disagreement with the WCB medical advisor's October 30, 2018 comments and relying on the medical information from the worker's healthcare providers in their October 2, 2018 submission. The report of a July 5, 2018 MRI of the worker's lumbar spine and the December 6, 2018 opinion of a WCB orthopedic consultant were placed on file and provided to the parties. On December 12, 2018, the employer provided a submission in response to the worker's appeal, and the worker's representative responded to that submission on December 17, 2018.

Review Office determined on December 20, 2018 that the worker was not entitled to medical aid and wage loss benefits after February 2, 2018. Review Office considered the worker's injury on July 27, 2017, the type and duration of treatments provided, the length of time since the accident occurred, the medical information on file, including the diagnostic imaging that did not identify any acute findings and the opinions of the WCB medical advisors and found that the worker was not entitled to further benefits as a result of the compensable injury.

The worker's representative filed an appeal with the Appeal Commission on January 14, 2019. An oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On February 11, 2020, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker was represented at the hearing by a worker advisor. The worker advisor made a presentation to the panel and provided the panel with a written copy of his presentation at the commencement of the hearing. Prior to the hearing, the worker advisor provided the panel with additional medical information. During the hearing, the worker answered questions posed to him by the worker advisor as well as by the panel.

The worker advisor commenced his presentation by stating that it was their belief that the WCB prematurely ended the worker's benefits.

The worker advisor further stated that it was their position that the worker has "… a now long-standing injury involving his left sacroiliac (SI) joint, coupled with involvement of the L5-S1 facet joint." The worker advisor also noted that there were early medical opinions of the worker having "…disc involvement that was and perhaps continues to be, a contributing factor, along with the right sided SI joint." The worker advisor requested that the panel consider all identified diagnoses in deciding this case.

The worker advisor highlighted the July 16, 2019 report from a Pain Clinic physiatrist who examined the worker on May 14, 2019. The worker advisor noted that the physiatrist diagnosed the worker's left SI joint as a source of the majority of the worker's symptoms, "…along with involvement of the left L5-S1 facet."

The worker advisor suggested that the WCB medical consultants had placed too much emphasis on the results of the diagnostic imaging available on the file. He stated that "…not all injuries are observable diagnostically, nor does diagnostic imaging always correctly identify or rule out a medical condition."

The worker advisor submitted that, even though a CT scan did not identify an SI joint abnormality, the WCB accepted responsibility for the worker's injury, inclusive of the left SI joint for months following the results of the CT scan.

From the worker's advisor's perspective, the WCB medical opinion relied upon by the WCB to discontinue benefits speaks to an expected recovery as opposed to the worker's actual recovery.

It was also noted by the worker advisor that the WCB medical consultant referred, more than once, to the worker having received appropriate treatment for his injury, and that his experience did not follow that of an expected natural history. The worker advisor agreed the treatments were appropriate to try, but suggested they were not the correct forms of therapy for the worker.

In summary, the worker advisor, on behalf of the worker, asked the panel to base its decision on the medical evidence inclusive of the worker's reported symptoms, functional limitations as well as clinical and diagnostic findings to find in favor of the worker.

Employer's Position

The employer did not participate in the appeal hearing.

Analysis

In order for the worker's claim to succeed, the panel must find, on a balance of probabilities, that the worker is entitled to benefits after February 2, 2018. For the reasons that follow, the panel is unable to make that determination.

The worker filled out a Worker Incident Report in which he described the July 27, 2017 accident. He reported that he was on a ladder at the top of a water truck holding onto a hose in order to fill the water tank from a municipal water distribution facility. While the water was being transferred into the tank on the truck the hose the worker was holding onto broke causing the worker to lose his balance on the ladder. The worker describes going backwards and that he "…slipped down the ladder about 2 rungs. One leg slipped about 2 rungs and I then came down the ladder and noticed some tightness in my back."

The worker first sought medical treatment on August 2, 2017 with the areas of injury noted to be lower back, left leg and left thumb.

The August 3, 2017 report by the worker to the WCB stated the following:

• Worker confirmed details of MOI (mechanism of injury) as indicated on WAR (Worker Incident Report). 

• Symptoms after the accident: his left leg felt like he pulled a hamstring muscle; tightness to his back. He continued to work but modified how he was working. 

… 

• His left leg and thumb are feeling better but his back is still very sore. He has trouble bending over. 

… 

• As his condition was not improving and he is still having back pain he went and got medical treatment. 

… 

• He has been standing a lot over the past few days because he has pain when sitting down or standing up.

The worker attended an initial physiotherapy treatment of August 3, 2017. The areas of injury were noted on the report from that appointment to be the lower back and left leg. The physiotherapist's diagnosis at that time was a "low back/right hip sprain/strain."

The worker contacted the WCB on August 10, 2017 and the following was documented in a claim note;

• he got up today to go the bathroom at night and was fine. 

• he got up later that morning and squatted down to pick up a shirt; he had instant and excruciating pain across his entire back; he could not move, his wife had to help him into the kitchen. 

… 

• his back is feeling better now, not as tight or sore.

On August 23, 2017 the worker contacted the WCB to report that he "Woke up Monday morning with tightness in his back. Got out of bed slowly. Took a couple of steps and his back was tightening up. Not able to move beyond that. At approximately 12:30 he was able to get up to go to the bathroom.

A medical report submitted to the WCB for an August 23, 2017 examination by the worker's family physician noted that there was lower back pain to right leg.

However, the panel notes that in a subsequent report by the same family physician dated August 30, 2017 the worker was feeling better and that the worker had muscle spasms in his upper and lower back but that there was "…no pain in legs." This was also confirmed by the worker when he contacted the WCB on August 31, 2017 when the "Worker stated the pain to his hip/leg seems to be resolving and is mostly isolated to his central back; physio is focusing on his back."

The worker's treating physiotherapist submitted a report to the WCB based on a September 5, 2017 examination which stated, in part: "1. Back tightness, 2. Discomfort in mid lower back, 3. Occasional tingling in right anterior thigh, 4. Improved mobility, 5. Less pain."

The same physiotherapist noted above filed a report with the WCB based on a September 14, 2017 examination that stated the following:

Treating patient since Aug 3, having difficulty getting him better. Pain was initially on right side and is now on left side. Complains of discogenic symptoms. Pain focused behaviour. Moving very stiff, difficulty up/down from bed. Current symptoms uncommon with mechanism of injury & stages of healing. Requesting a call-in exam. (17 sessions total)

The worker had a CT scan of his lumbar spine on October 3, 2017. The clinical history noted on the report was stated as "Back pain radiating to right leg decreased mobility." There was diffuse disc bulging noted as being present at L2-3 and L3-4 that resulted in borderline mild central stenosis at L3-4. The panel further notes that at L4-5 there was "slight disc bulging." as well as "…bilateral facet degenerative change and ligamentous hypertrophy. No central or foraminal narrowing is seen."

The worker participated in a WCB call-in exam on September 26, 2017. The WCB medical consultant's diagnosis based on that exam as well as the October 3, 2017 CT scan, was "…non-specific pain, likely with some contribution from the left SI (sacroiliac) joint." It was noted that the worker was within the recovery norm for the injury. It was also noted that there was no evidence of a pre-existing condition delaying recovery at that time. The panel notes that a copy of the WCB call-in exam report was forwarded to the worker's treating physician with a note indicating that the treating physician should contact the WCB medical consultant who performed the call-in exam should the treating physician wish to discuss the findings and impressions contained in the call-in exam report.

As a result of the findings noted on the WCB call-in exam report, a graduated return to work plan was developed based on temporary restrictions of; No lifting greater than 10 lbs. Able to work in a position of comfort and change positions between sitting and standing as tolerated. He should not work in any awkward postures. He should not do any repetitive bending or twisting at the spine particularly against weight.

The worker returned to work on modified duties on October 2, 2017, which continued until his employer was unable to continue to accommodate his restrictions and his modified duties concluded November 16, 2017. The worker did not return to work in any capacity after November 16, 2017 and prior to the WCB discontinuing wage loss benefits after February 1, 2018.

During this same period of time the worker began receiving chiropractic treatment commencing October 26, 2017. The panel notes that both the worker's treating physician and chiropractor note ongoing low back and left hip problems.

On January 7, 2018 the WCB medical consultant submitted a report as a result of the WCB request for a review the claim. The WCB medical consultant stated in her report the following as part of that report:

… 

The worker was seen at a call-in exam. The term non-specific pain was used to describe his presentation. There was no evidence of radiculopathy or any other sinister condition.

The worker is now 5 ½ months post injury. He has been off work. He has had physio and chiro. He has been on multiple medications. He continues to report pain, but the DC (chiropractor) notes full ROM (range of motion). No neurological findings have yet to be documented, so there remains no evidence of radiculopathy.

The worker is beyond the recovery norm for the dx's (diagnoses) initially provided by his practitioners of choice. He has been provided with appropriate treatment. A reason for delayed recovery is not apparent, so his presentation can no longer be medically accounted for in relation to the C/I (compensable injury).

Subsequent to the WCB discontinuing benefit entitlement effective February 1, 2018, the worker was examined by a number of other medical practitioners.

The worker was examined by a physiatrist on May 31, 2018 and September 5, 2018 who stated as part of his September 5, 2018 report, the following:

As stated in my earlier report, I do not feel that sacroiliac joint dysfunction or a disc bulge would result in all of his symptoms and specifically the entire lower limb ache. ("those entities should not result in the lower limb symptoms"). However, in my letter I did not state that he does not have findings of sacroiliac joint dysfunction or discopathy/disc bulge.

The worker had an MRI of his lumbar sacral spine performed on him on July 5, 2018. The results were described as "multilevel relatively mild degenerative changes in the lumbar sacral spine as described."

The worker was also examined by a pain clinic specialist on May 14, 2019 who stated as part of his July 16, 2019 report, the following:

I believe that the majority of this gentleman's symptoms are related to his left SI joint and left L5-S1 facet.

During the hearing, the worker advisor referred to an ongoing left SI dysfunction, as well as an ongoing L5-S1 symptomology, as being the result of the workplace accident. While the panel acknowledges that there are noted low back and left SI symptoms referred to throughout the file, the panel's conclusion is that there is no significant patho-anatomical findings that would account for the worker's ongoing and longstanding issues in these areas when viewed from the perspective of the noted workplace injury in July 2017. The panel's position is based on the following.

1) The October 3, 2017 CT scan of the lumbar spine noted "slight disc bulging…" at L4-5, the imaging also noted bilateral degenerative changes and ligamentous hypertrophy. The panel notes that there is no mention of the disc bulge compromising the nerve root at this level. Additionally, the panel notes there has been little, if any, clinical correlation of an ongoing L4-5 discogenic issue that would be required to attribute the worker's ongoing problems to an L4-5 disc injury. 

2) The July 5, 2018 MRI of the lumbar sacral spine stated the following: "The L4-5 levels unremarkable." That same MRI noted at L5-S1 that there was "a central annular tear without associated significant disc protrusion or root compromise." 

3) The December 6, 2018 report from the WCB orthopedic consultant, who had reviewed the July 5, 2018 MRI stated the following: "The MRI report did not describe any pathology in the sacro-iliac joints, so the clinical observation of pain and tenderness in the sacro-iliac anatomic region is not accounted for by sacro-iliac joint abnormality."

The panel did not identify other medical evidence that is in contradiction with the WCB orthopedic consultant's opinion of the MRI report. As such, the panel accepts the WCB orthopedic consultant's opinion on these findings.

The panel also notes that the documentation both from the worker as well as his medical providers noted above indicates the worker's symptomology varied at different points in this claim. It is the panel's view that the varied degrees of symptomology would not be consistent with a significant injury that the worker is continuing to present as symptomatic over two years after the workplace accident.

While the worker advisor submitted to the panel that they believed the WCB medical opinion relied upon by the WCB to discontinue benefits was based solely on an expected recovery as opposed to the worker's actual recovery, it is the panel's positon that the totality of medical evidence does not support that the worker's ongoing medical problems, as presented at the hearing and on file, are related to the July 27, 2017 workplace injury.

The panel is satisfied that, on the balance of probabilities, based on the non-sinister nature of the workplace injury, the inconsistent symptomology noted during the claim as well as lack of clinical medical evidence supporting an ongoing cause and effect between the workplace injury and the worker's ongoing medical problems, the worker had materially recovered from the July 27, 2017 workplace accident when benefits were discontinued after February 1, 2018.

For all the reasons noted, the worker's appeal is denied.

Panel Members

M.L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. Kernaghan - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of March, 2020